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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Mohd. Aslam, J.
Mohammad School - Appellant
V.
State of U.P. - Respondent
CRIMINAL APPEAL No. 3930 of 2016
Delivered on : 02-03-2022
NDPS ACT - SECTION 8/20 - CHARAS - RECOVERY - CONSENT - SECTION 50 - COMPLIANCE - EVIDENCE - POLICE WITNESSES - INDEPENDENT WITNESSES - SAMPLE SEAL - SECTION 52-A - VIOLATION - FORENSIC REPORT - ADMISSIBILITY - SENTENCE - SEVERITY - APPEAL - DISMISSAL.
Fact of the Case:
Accused-appellant was convicted under Section 20(b)(ii)(C) of NDPS Act, 1985 for possessing 5 Kg and 150 gm of Charas without authorization. He was sentenced to 10 years of rigorous imprisonment and a fine of Rs.1,00,000/-. The accused-appellant challenged the conviction and sentence on various grounds, including the legality of the recovery, non-compliance with Section 50 of NDPS Act, non-examination of independent witnesses, non-production of the sample seal in court, and the severity of the sentence.
Finding of the Court:
1. The recovery of Charas from the accused-appellant was proved by the testimonies of S.I. Dinesh Yadav (PW-1) and S.I. Ram Samujh Prabhakar (PW-2), which were found to be reliable and trustworthy. 2. Compliance with Section 50 of NDPS Act was not necessary in this case as the Charas was recovered from the accused-appellant's bag, not from his personal search. 3. The non-joinder of independent witnesses in the search did not affect the prosecution case as the recovery was made in a secluded place without prior information. 4. The sample seal of the contraband was not produced in court, but there was no evidence to suggest that the contraband had been tampered with. 5. The violation of Section 52-A of NDPS Act by sending the entire contraband for chemical examination did not render the recovery of contraband and the forensic science report inadmissible. 6. The sentence awarded to the accused-appellant was the minimum punishment prescribed by law and was not severe.
Issues: 1. Whether the Charas which is alleged to have been recovered from the accused-appellant has been falsely planted by the police officer and accompanying police personnels upon the accused-appellant and the signature of the accused-appellant on the consent letter was forged by the police personnels? 2. Whether the compliance of Section 50 of NDPS Act is needed and if it is so whether the compliance of Section 50 of NDPS Act has been made? 3. Whether the signature of the accused-appellant on the consent letter Ex.Ka-1 is forged?
Ratio Decidendi: 1. The testimonies of S.I. Dinesh Yadav (PW-1) and S.I. Ram Samujh Prabhakar (PW-2) were found to be reliable and trustworthy, and they proved the recovery of Charas from the accused-appellant. 2. Compliance with Section 50 of NDPS Act was not necessary in this case as the Charas was recovered from the accused-appellant's bag, not from his personal search. 3. The non-joinder of independent witnesses in the search did not affect the prosecution case as the recovery was made in a secluded place without prior information. 4. The sample seal of the contraband was not produced in court, but there was no evidence to suggest that the contraband had been tampered with. 5. The violation of Section 52-A of NDPS Act by sending the entire contraband for chemical examination did not render the recovery of contraband and the forensic science report inadmissible. 6. The sentence awarded to the accused-appellant was the minimum punishment prescribed by law and was not severe.
Final Decision: The appeal was dismissed, and the impugned judgment of conviction and order of sentence dated 29.4.2013 passed by the court below was confirmed.
JUDGMENT :
Mohd. Aslam, J.
1. Heard learned counsel for the accused-appellant, learned A.G.A. for the State and perused the record.
2. The instant appeal has been filed by accused-appellant under Section 374(2) of Cr.P.C. against the impugned judgement of conviction and order of sentence dated 29.4.2013 passed by Additional Sessions Judge (ECP), Siddharth Nagar in Special Case No.9 of 2011 (State Vs. Mohd. School), arising out of Case Crime No.11 of 2011, under Section 8/20 of NDPS Act, Police Station- Shohratgarh, District Siddharth Nagar, by which the accused-appellant was convicted under Section 20(b)(ii)(C) of NDPS Act, 1985 and was sentenced to undergo rigorous imprisonment for a period of 10 years with a fine of Rs.1,00,000/-, in default thereof, to further undergo imprisonment for two years.
3. The brief facts of the prosecution case are that PW-1 S.I. Dinesh Kumar Yadav, In-charge SOG along with his companion police personnels was busy in patrolling duty near Nepal border for taking care of the area and for preventing of smuggling by a Government Specio Jeep No.UP55-G-0030 and on the way he took along with him S.I. Ram Samujh Prabhakar and Ct. Shriram Sharma from the police booth Shohratgarh. As soon as they reached near the north of grove in Village Dhanaura Mustahkam, they saw a person in the light of Jeep coming from Nepal side with a bag and suddenly he started hiding himself in the grove to avoid the light of vehicle. On suspicion, he was apprehended with the help of his companion personnel. On being asked the reason of hiding, he told that he is having narcotic substance 'Charas' and told his name as Mohammad School. He was informed that it is his legal right to be searched before Magistrate or Gazetted Officer, thereupon, he stated that he may be searched by him and given his consent for being searched after execution of consent letter Ex.Ka–1. The yellow plastic bag which was in his right hand, was searched and from it four packets of beige coloured plastic on which J.O.R. was written and two packets of yellow plastic were recovered. On tearing the packets, Charas was found and on being weighed by the scale kept in vehicle, it was found to be 5 Kg and 150 gm along with plastic packet. In respect of authorisation for keeping Charas, he could not show any authorization letter. Thereafter, he was told that his act is punishable under Section 8/20 of NDPS Act and was taken in police custody on 4.1.2011 at 19:50 p.m. He was arrested and the arrest memo was prepared Ex.Ka–2. After keeping the recovered narcotic substance Charas in the same bag, it was stitched and was sealed and the sample seal was prepared. On enquiry, it was also told by the accused-appellant that the said Charas was given to him by Thapa at Nepal Taulihwa Border. He has also told that a year ago, he was escaped by digging tunnel from Taulihwa Jail from Nepal along with eight more prisoners. Recovery memo of Charas was ascribed by S.I. Ram Samujh Prabhakar (PW-2) on dictation of S.I. Dinesh Kumar Yadav, which was read and explained to accused-appellant and police perssonels. Thereupon, all police personnels put their signatures on recovery memo (Ex.Ka-3) as witness. The information regarding arrest of accusedappellant was given to the family member of the accused-appellant. He was taken to the police station Shohratgarh and was handed over along with contraband and recovery memo to H.C.P. Dharambir Shahi at 20:30 p.m. On 4.1.2011, H.C.P. Dharambir Shahi has ascribed the Check Report (Ex.Ka–9) at 22:30 p.m. at Police Station Shohratgarh and after making necessary entry in GD (Ex.Ka–10) vide report No.48 , the case was registered as Case Crime No.11 of 2011, under Section 8/20 of NDPS Act and the contraband was kept in the Malkhana after making necessary entry in Malkhana Register (Ex.Ka–6).
4. The investigation of the case was undertaken by S.O./S.I. Anoop Kumar Shukla (PW-5). He copied the check report and GD entry in the case diary. He also copied the
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